Bistrian v. Levi

• Decision Date: 24 March 2020
• Docket Number: CIVIL ACTION NO. 08-3010
• Citation: 448 F.Supp.3d 454
• Parties: Peter BISTRIAN, Plaintiff, v. Warden Troy LEVI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

448 F.Supp.3d 454

Peter BISTRIAN, Plaintiff,

v.Warden Troy LEVI, et al., Defendants.

CIVIL ACTION NO. 08-3010

United States District Court, E.D. Pennsylvania.

Filed March 24, 2020

Robert E. Goldman, Fountainville, PA, A. Richard Feldman, Lisa A. Barton, Michael F. R. Harris, Richard L. Bazelon, Bazelon Less & Feldman PC, Philadelphia, PA, for Plaintiff.

Benjamin N. Gialloreto, Law Offices of Joel J. Kofsky, Jeffrey M. Scott, Carlton L. Johnson, Shelley R. Smith, Tanneika Minott, Thomas Nardi, Archer & Greiner, P.C., Gary L. Bailey, Jr., Danyl S. Patterson, Bailey & Associates, Syreeta Joyce Moore, Team Clean Inc., Paul W. Kaufman, U.S. Department of Justice, Landon Y. Jones, U.S. Attorney's Office for the E.D. Pa., Marisa Davidson Nash, Bureau of Prisons, Marisa Nash, U.S. Attorney, Joseph Zaffarese, Wadud Ahmad, Aleena Yasmeen Sorathia, Kay Kyungsun Yu, Peter Carr, Ahmad Zaffarese LLC, Philadelphia, PA, Jordan Louise Fischer, XPan Law Group, Downingtown, PA, for Defendants.

MEMORANDUM OPINION

Rufe, District Judge

This civil rights case brought by Plaintiff Peter Bistrian has been before this Court for over a decade now. Bistrian asserted claims for a number of constitutional violations against individual officers in the Bureau of Prisons ("BOP") facility where he was held as a pretrial detainee pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics¹ and against the United States under the Federal Tort Claims Act. Some of the Bivens claims were dismissed and others were resolved on summary judgment, and at each of those stages, the individual officers took an interlocutory appeal to the Third Circuit. Meanwhile, the FTCA claims were dismissed in 2010 under the law as it stood then. After an intervening change in the law, however, as well as Plaintiff's discovery of some potentially mandatory policies while deposing BOP witnesses, Plaintiff was granted leave to file a Third Amended Complaint in 2015 and the FTCA claim against the United States was reinstated. The Bivens and FTCA claims were bifurcated and proceeded to trial in the summer of 2019: First, the Bivens claims against the individual officers were tried to a jury. The FTCA claims were then tried to this Court. For the reasons discussed below, the FTCA trial has not concluded.

In any long-running case like this one, it is perhaps inevitable that the evidence ultimately presented at trial will be deficient in one way or another. Memories fade, tangible things deteriorate, and electronic data disappear into the ether. Unfortunately, an extraordinary number of such evidentiary irregularities have plagued this litigation—specifically, the litigation of the FTCA claims against the United States that were the subject of the second trial—leading to accusations of spoliation, a motion for sanctions, and the reopening of discovery after both parties had rested. Those issues are addressed in this Opinion.

I. MOTION FOR ADVERSE INFERENCE

A. Background

While awaiting trial on charges of wire fraud, Bistrian was detained at the Federal Detention Center ("FDC") in Philadelphia. He was placed in the Secure Housing Unit ("SHU") for allegedly violating his phone privileges. While in the SHU, Bistrian was the victim of two assaults at the hands of other inmates. The second of those assaults was the subject of his failure-to-protect claim against the United States at this trial.

That second assault occurred when Bistrian and his fellow SHU inmate Aaron Taylor were placed in the same "rec pen" for their daily hour of recreation time. At the end of the recreation period, during which inmates were unrestrained in the rec pen, each inmate had to be handcuffed before the rec pen could be unlocked to return the inmates to their cells. After Bistrian was handcuffed, but while Taylor was still unrestrained, Taylor attacked Bistrian with a weapon fashioned from one of the disposable razors regularly given to inmates to shave with. Much attention was paid at trial to the safeguards at the FDC meant to prevent inmates from retaining razors and to ensure inmates did not smuggle contraband to the rec pen.

The FDC has a vast network of surveillance cameras that capture most everything that takes place within the facility. All agree that the cameras in the hallway of the SHU—that is, the corridor between two facing rows of cells in the SHU—would have captured footage of staff retrieving Taylor from his cell and escorting him to the rec pen. That footage would also have shown whether staff properly searched Taylor before escorting him to the rec pen. The footage is no longer available.

At trial, Bistrian moved for an adverse inference based on spoliation of evidence by the government. Bistrian argued that the government intentionally failed to preserve (1) surveillance video footage that would have shown whether Taylor was searched before being taken to the rec pen and (2) the razor weapon with which Taylor attacked Bistrian.² Bistrian sought an inference that Taylor either was not searched at all or that any search did not meet mandatory safety requirements. Bistrian also seeks an adverse inference based on the destruction of the munitions device used by correctional officers to break up the assault on him.

B. Legal Standard

"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation."³ When a district court finds that spoliation has occurred, it has the authority to fashion an appropriate sanction to remedy the damage to other parties.⁴ The adverse inference has a long history in the common law as one such sanction, as the Third Circuit has explained.⁵ It serves to remedy destruction of evidence, based on "the common sense observation that when a party destroys evidence that is relevant to a claim or defense in a case, the party did so out of the well-founded fear that the contents would harm him."⁶ "The admissibility of spoliation evidence and the propriety of the spoliation inference is well established in most jurisdictions."⁷

Until recently, district courts in the Third Circuit relied on both the Federal Rules of Civil Procedure and the inherent authority of the court in imposing sanctions for spoliation of any kind of evidence. In 2015, however, Federal Rule of Civil Procedure 37 was amended to provide a uniform standard governing spoliation sanctions for the loss of electronically stored information. The Supreme Court promulgated amended Rule 37(e) in recognition of "the serious problems resulting from the continued exponential growth in the volume of [electronically stored] information."⁸ Where the amended rule applies, it provides the exclusive remedy for spoliation of electronically stored information ("ESI"), foreclosing reliance on the court's inherent authority.⁹ Because the Federal Rules of Civil Procedure do not address sanctions for spoliation of tangible items and other non-electronic information, however, the analysis established in the Third Circuit's spoliation precedent still governs motions based on spoliation of non-electronic information.¹⁰ Accordingly, the legal standards governing spoliation of ESI and spoliation of other information are set out separately.

i. Spoliation of ESI: Rule 37(e)

Rule 37(e) sets out the standard for determining whether spoliation of ESI has occurred. Amended Rule 37(e) provides that spoliation occurs where ESI "that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery." The advisory committee's notes to the 2015 amendment further explain the elements of spoliation of ESI. First, the spoliating party was under a duty to preserve when the loss occurred.¹¹ Second, the lost ESI was within the scope of the duty to preserve.¹² Third, "the information was lost because the party failed to take reasonable steps to preserve" it.¹³ Fourth and finally, because ESI "often exists in multiple locations," spoliation occurs only where the information is truly lost and not recoverable elsewhere.¹⁴

The parties dispute whether the 2015 amendment to Rule 37(e) applies retroactively to the alleged spoliation in this case, which was filed in 2008. In the order promulgating the proposed amendment to Rule 37, Chief Justice Roberts noted that the amendments "shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending."¹⁵ This was consistent with the default statutory rule governing amendments to the Federal Rules of Civil Procedure, which creates "a presumption that a new rule governs pending proceedings unless its application would be unjust or impracticable."¹⁶

Two cases in this Circuit have considered whether to apply the 2015 amendment retroactively. Both concluded that retroactive application was appropriate.¹⁷ It is true that those cases were filed much later than this one and that the conduct relevant to this motion occurred as much as nine years before the new rule was promulgated.¹⁸ The Court nevertheless agrees with the United States that it is just and practicable to apply the amendments retroactively, especially since the "change does not appear to have substantively altered the moving party's burden, in this Circuit, of showing that ESI was destroyed in ‘bad faith’ when requesting an adverse inference."¹⁹ Accordingly, the Court will apply the test of Rule 37(e) to determine whether spoliation of ESI has occurred.²⁰

Once a court concludes that spoliation has occurred, it must determine what sanction to impose.²¹ Rule 37(e) provides a general framework for determining the appropriate sanction for spoliation of ESI. If a party "acted with the intent to deprive another party of the information's use in the litigation," the district court...